How Can I Adjust My Status if I have No Status to Adjust?

[BritNikki 0]

Hello All,

I am new to this board. I have a unique situation and I am hoping someone on here can help me make sense of it. Hopefully one of you may be going through or know someone going through a similar situation. Ok,.......

I was born in Newham London, England in 1975. In 1977 I was brought to the United States by my Birth Mother, who is a British Citizen. I entered the United States on my birth mother's passport. To my knowledge I did not receive a separate I-94 record for this entry. (I do have the original British Passport my birth mother used in my possession. I am listed as one of the children on this passport.)

I was left in the U.S. to be raised by my Father (Who is not a U.S. citizen He was married to a U.S.C. but never filed a petition). By the age of 5 my Father became addicted to drugs and disappeared from my life. When I was 8 my birth mother returned to the U.S. from the U.K. and took me away from my father’s wife ( My step-mother) who had raised me since I was a baby and brought me back to England where I lived with her for two years. For some reason and to this day I don’t know why, she brought me back to the U.S. and left my with my father’s sister, who later called my Step mother to come and collect me. As far as I know I didn’t receive a separate i-94 or visa because I was 10 years old and on my Birth mother’s passport. (I also have this passport in my possession)

I was raised by my Step-mother, who is a U.S. citizen. She legally adopted me in 1992 when I was 17 years old. After the adoption she applied for a I-130 petition for alien relative. In 1994 the petition was denied because my adopted mother could prove that she was legally married to my father before she adopted me, but couldn't prove that he was my father because his name wasn't on my British birth certificate. And because I was 17 when she adopted me I didn't fall into the "child" category for immediate family member. (In the U.S. the age for an adopted child of a U.S. citizen is 16 years or under)

I was given 6 months to appeal the decision. I first tried to get my father's name added to my British birth certificate. I wasn't able to do this because at the time British law only allowed changes made through the Birth Mother's request and she wouldn't cooperate. By this time I passed the allotted time given to file an appeal.

The only other option I had to prove paternity was through a DNA test. For the next TEN years I looked for my father. After tracking down my father, (who had moved back to his home country in South America after years of living on the streets in the U.S.) I was able to prove paternity through a DNA test.

We re-applied with immigration in 2005. The I-130 was approved in 2009. In the I-797 it states that USCIS knows that I am in the U.S. but I am NOT eligible to apply for adjust of status at this time. And if I choose to leave the country to apply for an immigrant visa from outside the country based on this approved I-130, I should file form I-824 (Application for Action on an Approved Application or Petition) with USCIS.

In order for me to become eligible to apply for an adjustment of Status based on this petition I have to wait for my priority date to come up on the Visa Bulletin in the category that I fall under (alien relative unmarried 21 years or older.) My priority date is Aug 2005

The current processing time on the visa bulletin is an average 3-5 year wait. The Visa bulletin states they are processing applications with a priority date on or before May 2004. It took immigration over two years to process applications with priority dates Jan 2003-May 2004.

Here are a few details about me:

I have never been able to work legally in the U.S.

I went to High School and two years of University in the U.S.

I have never left the U.S. since returning when I was 10.

I did have an attorney but don’t currently because I finances. I have used every free consultation or Legal aid I could find. But I am still not sure what are the best options for me because my situation is complicated.

My questions are……

1. Is there anything else I can do so that I can work while I am waiting on the adjustment of status visa number to become available? Besides marry a U.S. citizen.

2. Can I apply for a temporary work visa while in the U.S.? or would I have to go back to the U.K. and apply from there?

3. Can I apply to adjustment to work status? Is that possible?

4. I never received an I-94, so If I leave the country ( I applied for my adult British Passport) would I receive a visa overstay ban for 10 years?

5. If I don’t have current status how can I adjust my status? (As far as I know I was never issued an individual visa)

6. When I entered on my Birth mother’s British passport and she went back to England and turned in her I-94 does that count as me turning back in since I was listed by name on her British passport?

7. By me filing with immigration in 1992 can they use that as proof I overstayed in the U.S. even if I didn’t recieve a visa/i_94 as a baby?

8. If I wait another two to three years for a visa number to become available and file to adjust my Status is there a chance it will be denied because I was out of status for so long?

9. Is it wiser for me to just go back to the U.K. and apply from there for a work visa for the U.S.?

10. If I leave the U.S. and go back to the U.K. and a visa number becomes available and I file the I-485 and it’s approved will that automatically excuse the ban if I receive one?

I thank you all in advance for any advice, tips or guidance you can offer.

[Kathryn41 3,205]

An exchange where information that could be construed as supporting an illegal action has been removed. I don't believe the intent was to offer illegal advice but it could be taken that way so has been removed.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Moderator hat off: Weighing in here . . .

Your situation is definitely complicated and should be handled by a knowledgeable and more-than-competent immigration attorney.

It appears you arrived legally in the US on your mother's visa so your status would be 'out of status legal entry visitor'. That means you do have a status from which you can adjust but whether USCIS will allow you to adjust from that out-of-status legal entry or not is the problem. As far as I know, only the spouse of a US citizen can adjust from an out-of-status legal entry position- all others must have some sort of legal status in the US.

The other problem is, once you turned 18 you began to accrue out of status days. Over a year of out of status days means that when you leave the US you will incur an automatic 10 year ban. I don't know if there can be any sort of exception since the original application was submitted prior to your turning 18 and you needed to obtain additional proof so your adoptive US parent could file for you. I don't know if you have a right to derivative US citizenship through adoption or not or only to permanent residency. This is where a lawyer is really going to be necessary.

Since you would incur the ban on leaving regardless, it is worth your while to try and stay in the US and see if you can get your status acknowledged through the adoption by a US citizen. It will be an uphill battle - and unfortunately, the particulars are going to be beyond the experience level of our members so I am not sure how much real advice we can offer. It really does appear like you are between the proverbial rock and a hard place.

Under your current situation, however, there does not seem to be any grounds by which you can get employment authorization unless you find an employer wiling to file for an EAD for you. Under current legislation, however, if you leave the US you will incur a ban. You really need to have a lawyer answer your questions. Good luck.

Edited October 2, 2011 by Kathryn41

[BritNikki 0]

Perhaps she does....who doesn't?!?!?!

The point was, an incorrect advice that conflicts with the TOS of this site was given by a MOD...sorry, an organizer.

To the OP, my question is still valid...]]

During your living here, did you knownly use another person's SSN and filed taxes on it?

No. I don't have documents in the U.S. So I've never worked or filed taxes.

[BritNikki 0]

An exchange where information that could be construed as supporting an illegal action has been removed. I don't believe the intent was to offer illegal advice but it could be taken that way so has been removed.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Moderator hat off: Weighing in here . . .

Your situation is definitely complicated and should be handled by a knowledgeable and more-than-competent immigration attorney.

It appears you arrived legally in the US on your mother's visa so your status would be 'out of status legal entry visitor'. That means you do have a status from which you can adjust but whether USCIS will allow you to adjust from that out-of-status legal entry or not is the problem. As far as I know, only the spouse of a US citizen can adjust from an out-of-status legal entry position- all others must have some sort of legal status in the US.

The other problem is, once you turned 18 you began to accrue out of status days. Over a year of out of status days means that when you leave the US you will incur an automatic 10 year ban. I don't know if there can be any sort of exception since the original application was submitted prior to your turning 18 and you needed to obtain additional proof so your adoptive US parent could file for you. I don't know if you have a right to derivative US citizenship through adoption or not or only to permanent residency. This is where a lawyer is really going to be necessary.

Since you would incur the ban on leaving regardless, it is worth your while to try and stay in the US and see if you can get your status acknowledged through the adoption by a US citizen. It will be an uphill battle - and unfortunately, the particulars are going to be beyond the experience level of our members so I am not sure how much real advice we can offer. It really does appear like you are between the proverbial rock and a hard place.

Under your current situation, however, there does not seem to be any grounds by which you can get employment authorization unless you find an employer wiling to file for an EAD for you. Under current legislation, however, if you leave the US you will incur a ban. You really need to have a lawyer answer your questions. Good luck.

Unfortunately my step mother couldn't file for me as her adopted daughter because the adoption was filed when I was 17 years old. and to be classified as an adopted child for an I-130 the child has to be under the age of 16 yrs. We asked if we could reference the first application before we submitted the second one and we were told, by our then attorney that because the time had lapsed for the appleal that application was closed and we would have to start over.

Thank you for your response.

[BritNikki 0]

Sorry guys small correction

my step mother COULD prove that she was legally married to my father. She couldn't prove that HE was my father because he wasn't on my British birth certificate.That's why the DNA test was needed. Sorry about that.

[JimVaPhuong 4,863]

Go see an immigration lawyer. I think you might be able to resurrect the denied 1994 petition because you now have the proof that your biological father was married to your step-mother before you were 18, which makes her eligible to petition for you even if she didn't adopt you. You might be able to adjust under section 245(i) of the INA because that petition was filed before April, 2001.

[VanessaTony 3,567]

Go see an immigration lawyer. I think you might be able to resurrect the denied 1994 petition because you now have the proof that your biological father was married to your step-mother before you were 18, which makes her eligible to petition for you even if she didn't adopt you. You might be able to adjust under section 245(i) of the INA because that petition was filed before April, 2001.

Quick qn Jim.. what about that immigration/adoption rule regarding only people who are orphans being eligible to become USC's thanks to adopted parents?? Am I on the wrong page about that?

[Brit Abroad 166]

I know it's a long shot, but in order to prove the relationship between your father and yourself, would USCIS acknowledge the DNA link between you and his sister in order to show entitlement to US citizenship based on being the daughter of a citizen? Surely, if both their parents were the same, you would have enough shared DNA markers to indicate a blood relationship.

[JimVaPhuong 4,863]

Quick qn Jim.. what about that immigration/adoption rule regarding only people who are orphans being eligible to become USC's thanks to adopted parents?? Am I on the wrong page about that?

It might not matter in his case. His US citizen step-mother married his father before he was 18. That makes him an immediate relative of a US citizen. She filed a petition for him before he was 21. That petition was approvable, but it was not approved because they lacked required evidence. Under 245(i) it's not required that the petition was approved - only that it was approvable. It would mean having to pay a $1000 fine, but it might be an easy route out of the mess he's in.

[BritNikki 0]

I know it's a long shot, but in order to prove the relationship between your father and yourself, would USCIS acknowledge the DNA link between you and his sister in order to show entitlement to US citizenship based on being the daughter of a citizen? Surely, if both their parents were the same, you would have enough shared DNA markers to indicate a blood relationship.

I proved paternity through DNA. that is no longer an issue.

[BritNikki 0]

It might not matter in his case. His US citizen step-mother married his father before he was 18. That makes him an immediate relative of a US citizen. She filed a petition for him before he was 21. That petition was approvable, but it was not approved because they lacked required evidence. Under 245(i) it's not required that the petition was approved - only that it was approvable. It would mean having to pay a $1000 fine, but it might be an easy route out of the mess he's in.

Hi Jim,

I asked several attorneys about this and I was told that I wouldn't be able to use the previous application because It was 'Denied'. But I will definitly look into again. Thank you for your tip. Oh and Nikki is short for Nicole. :-)

[Brother Hesekiel 2,236]

Nicole,

we don't discriminate against females here. We treat them like men!

Agreeing with Jim 100%, and all you need to do is go to a bunch of free initial consultations, present your case in detail, and wait for an attorney to find the hook Jim found on his own. You will find her.

[BritNikki 0]

Hi Jim,

I asked several attorneys about this and I was told that I wouldn't be able to use the previous application because It was 'Denied' and the deadline for re applying was April 2001. I didn't re apply until 2005.But I will definitly look into it again. Thank you for your tip. Oh and Nikki is short for Nicole. :-)

[Gosia & Tito 199]

Nicole,

we don't discriminate against females here. We treat them like men!

Agreeing with Jim 100%, and all you need to do is go to a bunch of free initial consultations, present your case in detail, and wait for an attorney to find the hook Jim found on his own. You will find her.

In every major city, there is usually an immigration advocacy group; it is also often not well publicized and unless you purposely look for it, you wouldn't know it exists. It is often linked to a Catholic church or group but not always; they do have immigration attorneys volunteering their time and it is not uncommon they take a case pro-Bono (in fact all cases they take on behalf of the organization they work with are like that). Your case seems like a good candidate. These attorneys are often quite good.

As others said your case is one that require a good immigration attorney and you have mentioned financial limitations, that is why I suggested an advocacy group.

[BritNikki 0]

Thank you for your response. I used the Catholic Advocacy group here in Atlanta Ga in 2005. They helped me file my last application, along with an immigration attorney that helped me pro Bono.